Reforms may strengthen protection

The Gillard government is likely to push through a raft of workplace laws ahead of an election this year – and increased protections for casuals, extra rights to request flexible work and changes to greenfields agreements could be among them.

Workplace Relations Minister
Bill Shorten
confirmed to The Australian Financial Review that he will be consulting with stakeholders on possible changes to the law on casuals. ACTU president
Ged Kearney
says insecure work will be a big part of the union’s campaigning this year.

In December, Prime Minister
Julia Gillard
refused to say whether she would support law reforms on casuals, but told the Financial Review “it does worry me that for a large and growing proportion of the Australian workforce that working life doesn’t offer them security when they are sick ... [or] when a family member is sick".

Any moves to boost legal rights for temporary workers will see a backlash from employers. The Australian Chamber of Commerce and Industry’s director of workplace policy, Daniel Mammone, says that with casual loadings this year increasing under modern awards to 24 per cent, “the debate has to be balanced by considerations on how policy changes might impact on small business in particular. They are in a precarious position themselves."

Rights to request flexible work for carers is an area where at least some changes are likely. In November Shorten said “we’ve got more things to consider about the right to request leave" and “there’s an issue around access to protections for people who are pregnant but have worked less than 12 months in a business", adding he would look to close any “loophole".

The ACTU wants everyone to have the right to request family-friendly arrangements. Now the law only allows requests from parents of pre-school or disabled children under 18.

Changes to laws on greenfields agreements is another area Shorten is planning to consult on, his spokesman told the Financial Review. This has been a hot-button issue for employers, particularly those in the construction, manufacturing and mining industry, because they say existing laws allow unions to extract inflated wages and conditions. The government’s independent Fair Work Act Review panel last year recommended that employers be required to tell all relevant unions when they start bargaining for a greenfields agreement, and for the Fair Work Commission to be empowered to arbitrate where negotiations and conciliation have failed.

So far the Coalition is very light on details outside of a promise to re-introduce the Australian Building and Construction Commission and reform union governance rules. Hinting at possible changes to right of entry provisions in the Fair Work Act, Abetz says news on the weekend that the Australian Workers’ Union has been entering BHP Billiton’s Worsley alumina plant every two days “is tantamount to harassment". He adds that the Coalition is considering reforms to greenfields agreements and individual flexibility agreements. ACCI’s Mammone says he will be pressing both sides of politics to make changes to IFAs to make them “workable".

A number of other workplace-related bills are already before parliament or under inquiry, including sweeping changes to federal discrimination laws that have employers and media companies up in arms.There is widespread support for Labor’s plan to consolidate 5 pieces of legislation into one, but that’s where the consensus ends. A Senate committee is currently considering the bill and due to report next month. Employers, media companies and the Catholic Church slam plans to change the definition of discrimination to include things which merely subjectively offend people. They argue such a change will be a threat to freedom of speech. Employers also argue that changes to the burden of proof, combined with changes so that unsuccessful litigants will not usually have to pay the other sides costs, will dramatically increase the costs to business. But the ACTU has told the inquiry the changes “go some way to addressing that imbalance of power", although it should have gone further.

The federal government is also expected to announce its response to a parliamentary inquiry into bullying which recommended giving bullying victims the right to make claims in a court or tribunal.

Changes will also come from outside of federal executive government. The newly named Fair Work Commission is set to hand down a decision on penalty rates soon, and will be considering the ACTU’s claim to increase apprentice wages.

The Queensland government is also seeking submissions on a plan to return small business employees to a state industrial system.

Insiders are also predicting ongoing industrial battles between construction giant Grocon and the Construction, Mining and Forestry Union this year, particularly in the militant heartland of Victoria. The Victorian Supreme Court is set to hand down a judgment on whether the CFMEU should be forced to pay up to $10.5 million in damages to Grocon over an illegal 16-day blockade of four big Victorian projects last August.

Meanwhile John Setka, the new Victorian secretary of the CFMEU construction and general division is maintaining the campaign to sever ties with the Cbus industry super fund and Commonwealth Bank of Australia because of their association with Grocon.

With all that afoot, one thing is guaranteed this year, regardless of the federal election outcome, business will be booming for employment lawyers.